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Your rights to open records


Who says Montanans have the right to observe government at work?

The Montana Constitution does, and that's all you need to be armed with when you're requesting public information from government officials. You don't have to give your name. You don't have to say why you want it. You don't have to say where you live or for whom you work.

Specifically, in Article II, Sections 8 and 9, the constitution guarantees Montanans the right to participate in government and examine government documents housed at any state agency, local government office, school district, even the county weed board. That includes draft documents and works in progress. Since 2001, state law has included government e-mails, too.

According to the constitution, the only reason a document can be withheld is when the demand for individual privacy clearly exceeds the public's right to know.

That said, there are scattered exceptions in state law that keep certain records out of public view. Examples are records dealing with ongoing criminal investigations, public safety or the security of public facilities. However, these statutory exceptions could be trumped by the constitution if they were challenged in court.

Citizens in Montana have a right to inspect documents at any time during normal business hours and to ask for copies of records for a ''reasonable fee.''

What does ''reasonable'' mean? According to Montana law, it means the actual cost of producing them. In real world terms, if it only costs a nickel to make a simple black-and-white copy of an 8-by-11 document in a commercial print shop, it shouldn't cost any more in a government office. This applies to computerized records as well as paper records.

Some disagreements over government records end up in court and, almost invariably, judges or the courts rule in favor of disclosure.

John Shontz, attorney for the Montana Freedom of Information Hotline, has advice for citizens denied access by a government employee to public records:

Play the legal card. Remind the employee that you have the right to the information under the law and that you're prepared to go to court over the issue. ''Advise the employee that he/she will be named personally as a defendant in the suit,'' Shontz said. He also advises telling the employee that, if you sue and win, the agency may be ordered to pay your attorney's fees. Also, a judge can overturn any agency decision made to withhold documents from you.

Ask for the boss. If the information still is not forthcoming, Shontz suggests that citizens ''demand to see the employee's supervisor and repeat Step One.''

Have a cell phone handy. If all else fails, call Shontz's law office using the Montana FOI Hotline number - (406) 442-6520 - and request assistance while you're still in the office. Bringing a lawyer into the discussion shows you're serious.

For more information: The Montana Freedom of Information Hotline has a number of publications that can help the public understand the law on government records and meetings, ranging from wallet-sized cards (with the text of Montana's open government laws) to a new, detailed ''desk book'' that explains laws and relevant court decisions step-by-step. For more information on any of these publications, contact the Montana FOI Hotline in Helena at (406) 442-6520.


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